Unregistered partition deed is not admissible as evidence
The house in which I stay is jointly registered (1932) in the names of my great grandfathers (A and B). According to an unregistered partition deed made between them in 1962, the property in question was to go to A. The list was signed by A and B and their class I heirs. It was also decided by A and his heirs that his eldest son (my grandfather, C) will get the house. C is survived by his wife, three sons (D, E and F) and a daughter. C’s family has decided to equally divide the property among D, E and F. They have been living here since 1985. Is the unregistered partition deed of 1962 valid? If so, all the class I heirs of A have to sign the new partition deed? The property is in Ranchi, Jharkhand.
We are assuming that you are a Hindu, governed by the provisions of Hindu laws. We are also assuming that the immovable property is a joint Hindu family property and there has been no arrangement or partition other than the unregistered partition deed of 1962 (partition deed).
With respect to the first question on whether the partition deed is valid or not, guidance must be taken from sections 17 and 49 of the Registration Act, 1908, governing documents that require compulsory registration.
An instrument of partition of immovable property of the value of Rs.100 and upwards is a document that purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in such immovable property and therefore is required to be mandatorily registered under section 17. It will also require appropriate stamping under the laws applicable in Jharkhand. This position of law does not change whatever be the form of the partition instrument—receipt, regular deed or any other. It requires registration as it declares an interest in immovable property, provided however, the value of interest so declared is Rs.100 or upwards.
Document evidencing the partition has to be compulsorily registered. Else, it becomes inadmissible as evidence (section 49) to prove the title of any party to the instrument to any property, or to prove that any particular property has ceased to be joint.
The partition deed being unregistered is not admissible as evidence and a view could be taken that the property will belong to all class I heirs of A and B. One way to approach the situation would be to enter into a family arrangement by all class I heirs of A and B, documenting the intention that the property would belong equally to D, E and F. This creates rights and interests in the property and will fall under the category of documents that require compulsory registration. Also, it has to be adequately stamped prior to registration.
Family arrangements as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon.
The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon to avoid ambiguity in future. It is only when the parties reduce the family arrangement to writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document has to be stamped and registered. This is because it becomes a document of title declaring various parties’ rights in properties.
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